## Facts

- Cairo, Inc. operated a website that provided searchable local retail sales information.
- Crossmedia Services, Inc. operated services hosting interactive electronic versions of retailers’ promotional materials across numerous websites.
- CMS displayed a conspicuous notice on its webpages stating that continued use constituted agreement to Terms of Use prohibiting commercial use, with the terms accessible by hyperlink.
- The Terms of Use stated they were a binding agreement, prohibited commercial use and automated “robots,” and included a forum-selection clause requiring suits to be brought in state or federal courts in Chicago, Illinois.
- Cairo used automated robots/spiders/crawlers to repeatedly access CMS’s sites, copy promotional material, and display thumbnail images that deep-linked to CMS’s interior pages.
- CMS sent a cease-and-desist letter asserting Cairo’s conduct violated the Terms of Use; Cairo continued accessing the sites.
- Cairo filed a declaratory judgment action in the Northern District of California seeking declarations that its conduct did not violate various legal rights (including copyright, trademark, unfair competition, contract, trespass, and related theories).
- CMS moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), relying on the Illinois forum-selection clause in the Terms of Use.

## Issues

1. Whether Cairo was bound by CMS’s browsewrap Terms of Use, including the forum-selection clause, based on continued use of the websites with notice of the terms.
2. Whether Cairo’s repeated automated access via robots supported imputing knowledge of the Terms of Use even without affirmative click-through assent.
3. Whether enforcement of the forum-selection clause required dismissal for improper venue in California.

## Decision

- The court granted CMS’s Rule 12(b)(3) motion and dismissed the action for improper venue.
- The court held the browsewrap Terms of Use formed a binding contract between CMS and Cairo.
- The court found Cairo had at least eventual actual knowledge of the Terms, and also held knowledge could be imputed from Cairo’s repeated, systematic robot-based access to webpages displaying conspicuous notice.
- The court enforced the forum-selection clause requiring litigation in Chicago, Illinois.
- The court did not reach the merits of Cairo’s requested declaratory relief because the dispute was required to be litigated in the contractually selected forum.

## Legal Principles

- Browsewrap website terms may be enforceable where the site provides reasonably conspicuous notice that continued use constitutes assent and the user proceeds to use the site.
- Assent to online terms can be manifested by conduct (continued use) and does not necessarily require a click-through mechanism when notice is clear.
- Knowledge of website terms may be imputed to a sophisticated commercial user that repeatedly accesses a website through automated robots, particularly where the site provides conspicuous notice of linked terms.
- Forum-selection clauses in commercial agreements are presumptively enforceable absent a showing of unreasonableness, injustice, fraud, or overreaching; when enforceable, they support dismissal for improper venue.

## Conclusion

The court treated CMS’s conspicuously posted browsewrap Terms of Use as a binding contract with Cairo, imputed notice based on repeated robot-driven access (and found actual knowledge as well), enforced the Chicago forum-selection clause, and dismissed the California declaratory judgment action for improper venue.


Cairo, Inc. v. Crossmedia Servs., Inc., No. C 04-04825 JW, 2005 WL 756610 (N.D. Cal. Apr. 1, 2005)